The "Self-Executing Rule" Danger

March 16, 2010

Democrats appear likely, though they haven't fully decided, to pass health care reform via something called a "self-executing rule." Instead of passing the senate health care bill and then passing the changes to it in a separate reconciliation bill, they'd pass a reconciliation bill with a "rule" that deemed the Senate bill to have been passed. So, one vote instead of two. The tactic is called "deem-and-pass."

The advantage of this procedure is that Democrats believe it will protect them against unpopular elements of the Senate bill. That bill contains special deals for Nebraska and other states, which have become politically toxic. The reconciliation bill will cancel those deals out, but first Democrats have to vote for a bill that contains them in the first place. That, they fear, would open them up to misleading Republican campaign attacks about having "voted for the Cornhusker Kickback." So the self-executing rule lets them vote for one bill that cancels out the Senate deals in one fell swoop.

The downside of this move, however, seems even greater. First, it gives Republicans another procedural line of attack. To be sure, the procedure Democrats are contemplating is a common one, as Congressional expert Thomas Mann of the Brookings Institution explains:

However, this kind of end run by the House is not that unusual, according to congressional scholar Thomas Mann of the Brookings Institution. Mann says Congress has used self-executing rules to pass such legislation as the smoking ban on domestic airline flights, an employment verification system meant to screen out illegal immigrants and a ban on using statistical sampling for the 2000 Census.

"It's a way to manage difficult, partisan problems," Mann says.

As with reconciliation, self-executing rules have been used by both Democratic and Republican congressional majorities, Mann says. He says Congress used it 36 times in 2005 and 2006, when the GOP was in charge, and 49 times in 2007 and 2008, after the Democrats had taken control.

A 2006 Congressional Research Service report on self-executing rules calls them "procedurally imaginative" and notes that they have been used "on matters involving House-Senate relations." The CRS report says the mechanism was originally used as a way to streamline House approval of Senate amendments or to make technical changes or corrections to legislation.

But it's still another attack line for Republicans, and one that the conventional wisdom seems sympathetic to. (See today's Washington Post editorial asserting, without providing a reason, "it strikes us as a dodgy way to reform the health-care system.") Nate Silver summarizes the political calculus: "Deem-and-pass: we'll use confusing backroom tactics to avoid having to take a vote on a bill sullied by confusing backroom deals. Genius!" Yes, House Democrats, I think that's sarcasm.

The bigger problem is that Republicans plan to challenge the constitutionality of health care reform if it passes through this method. Michael McConnell, a law professor and retired former Republican judge, had an op-ed in yesterday's Wall Street Journal calling legislation passed this way unconstitutional. Now, I found his reasoning specious, and the ruling would require striking down scores and scores of laws. It would do violence to well-established precedent. But nobody who recalls Bush v. Gore could completely rule out five Republican justices deciding on a wildly activist ruling on a high-stakes political fight.

Now, if deem-and-pass is the only way to assemble 216 votes in the House, then it's worth the political risk. Perhaps some House Democrats so distrust their Senate colleagues that they refuse to take a second vote. But this would be a sign that the House Democrats' bitterness had grown beyond all reason and left them unable to think about their self-interest in a rational way. The House is angry that it's passed a lot of bills that the Senate has failed to reciprocate. Anthony Weiner says, "Fool me once, shame on me; fool me 290 times, shame on you," referring to the 290 bills passed in the House but ignored by the Senate.

This totally misunderstands the nature of the problem. The House passes more bills than the Senate not because House members are better or more liberal than Senators, but because the House is a majoritarian institution and the Senate isn't. It's not as if the House has taken 290 votes on bills where the Senate has promised 60 votes to pass identical legislation but reneged. If the Senate worked on majority rule and the House had a supermajority requirement, then the Senate would be a legislative machine and the House would be where bills go to die.

On health care, as it happens, the Senate has already passed a bill. It doesn't need to assemble 60 votes. It only needs 50. Well more than 50 Senate Democrats are willing to pass reconciliation changes to the health bill. All of them have already voted yes. The changes in the reconciliation bill are all politically popular. Senators are promising to deliver the 50 votes. It is in the Senate's political interest to follow through on their promise. If the House can't accept the Senate's assurance on this, the House is nuts.